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Understanding Copyright for Photographers

Photo Tips Podcast: Understanding Copyright for Photographers #36

Photo Tips Podcast: Understanding Copyright for Photographers #36

copyright for photographers
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Photo Tips Podcast: Understanding Copyright for Photographers #36

Zim: Copyright is a subject which is often on the minds of photographers, but many still find themselves confused about the subject, so I've invited Michael Cukor to discuss the various issues of copyright as it pertains to us photographers. Michael is a founding partner of McGeary Cukor and Associates and is an intellectual property lawyer licensed to practice in New York, New Jersey and Washington, DC.

Hey Michael, thanks for joining me let's get right into it. I wanted to talk about copyright today and first of all what is copyright and why should I as a photographer, be concerned about copyright?

Michael: Hi Zim. So copyright is the right of the artist to control and monetize their art that they created. It’s an award to the inventor or creator of an art piece. Copyright can cover a lot of different art pieces from photographs like what we're talking about, but it also can cover computer code or an architectural design or even tattoos. Copyright is the right to control how your art is used and if it's going to be monetized. It inures that you can get the money for that art.

Zim: So how do I protect my copyright?

Michael: Well the good news is in the United States and in other countries but I’m primarily focused on the United States, you get copyright just by creating art which is great the statute says that it goes to the author at the time the art is created and fixed in a tangible means of expression so just by creating it and fixing it like recording a song recording, or taking a photograph and it goes onto a hard drive or printing a photograph or even saving a computer file the author of that gets that copyright and owns that so that's part of it but there's another thing called copyright registration that gives you additional benefits that the artist or author would get if they file for registration.

Zim: So what is registering for a copy right give me?

Michael: Registering for copyright is just basically putting the world on notice that you own this copyright. And you do that by registering at the United States Copyright Office. It's a pretty easy process and the idea is that the United States wants to build its cultural library of important art and that by collecting that and having samples of that at the copyright office that's important to the United States as a whole and in exchange for that the copyright office gives to the artist certain benefits that they wouldn't have if they didn't register at the copyright office. And there's a lot of different benefits but the most important ones are the ones that have to do with enforcing the copyright against somebody else that is using it without your permission.

Zim: So in other words, I mean one of things that I've often thought about because we have digital photography now and all our images come on these tiny little memory cards. And I have actually lost a memory card I've dropped it somebody picks it up; although legally that is mine it's kind of tough if I didn't actually register that image for copyright, right?

Michael: That is a complicated situations so yes those images are the copyright in those images are owned by you, once they hit the flash drive. That's fixed in a tangible means of expression so they're there, they’re permanent and the copyright is yours but you haven't registered them. That would mean that you would not be able to sue someone for infringement of those copyright images without registering them. I don't know how you would do that in that particular situation, because you lost the images, it would be hard for you to register them. But there are benefits to registration. One of them is that you get to file a lawsuit in federal court for infringement of your copyright.

Zim: I understand there's a monetary number that's attached to that if you actually registered your copyright.

Michael: So one of the other benefits of registering a copyright is that you can potentially have access to what's called statutory damages. Now as a photographer sometimes it's difficult to prove damages when someone copies your images. The copyright system recognizes that. If you've created a photograph and someone uses it on their website and you tell them to take it down they may take it down but they may refuse to want to pay any damages to you because they say, “Well we haven't made any money off it really and you don't get harmed by it really so we're not going to pay you anything for that.” And the copyright office recognizes that that can be a problem so it created the statutory damages system that allows photographers to get damages for infringement without proving damages. The court can award what's called statutory damages; which is anl amount between three hundred dollars and thirty thousand dollars for each infringement and if there's willfulness which means that you can prove that it was done on purpose that amount can go up to a hundred and fifty thousand dollars.

Zim: Okay so in other words register your copyright. You said earlier that you know you just do it on the website it's an easy process is that correct? I mean what about how much money does that cost?

Michael: Right it's a great question but before I answer that I want to complete my last answer and point out that statutory damages are only available to you if you register your copy right before the infringement occurs. While you can register your copy right after an infringement and still have access to federal court you will not have access to statutory damages if you wait till after the infringement occurs so it's really a good idea to register your photographs at the copyright office when you create them or shortly thereafter and luckily for photographers it's pretty easy. There's a couple different forms that can be used, depending on what you're registering and they're all available to copyright office. And to answer your last question it's relatively inexpensive. If you register for a single photograph it's $45 dollars but you can register for a group of photographs for $55 dollars. So registering a group is a much better deal and with the group you can register up to, I think 750 photographs at once for $55 dollars, it's pretty much a great deal.

Zim: Yeah that's a pretty good deal. All right so take the picture, go to the trademark patent office and register that right away. I'm gonna make sure we put the website address on our website after we finish this podcast. Moving on from that. That means putting a watermark on my image doesn't really do anything other than telling people that it's mine; it doesn't give me any extra protection right?

Michael: Let's come back to that one second I just want to make clear that you register with the Copyright Office which is not the patent or trademark off which is a separate office and I just want to point out that for photographers when registering a group a lot of photographers like to register a collection that is based on a certain time period. So the photographs I took in 2017 if that's less than 750 photographs or the photographs I took in January of 2020. And you can register those as a group or at one $55 dollar fee and that gives you like a strategy for when to file your registrations. It keeps you paying attention to it. Your last question was about the watermark and I think that the watermarks generally help people or discourage people from re-using your image without your permission with a technical perspective. It just makes the image look worse. It generally doesn't afford additional protection under the copyright law but it can be used as evidence of willfulness and that can help you increase your damages to the higher number; the $150,000 dollar number. So for example, if you publish your image with a watermark on it and someone else copies that image and copies the watermark and uses it on their website they cannot argue that they didn't know what was copy righted they cannot argue that they didn't know who it belongs to or that they got a license or anything like that. It pretty much demonstrates willfulness and that can be useful if you're gonna file a lawsuit against someone.

Zim: Can my copyright does me my logo my name or does it have to have that “C” and the date on it.

Michael:  Traditionally copy right notice does have the “C” with a circle on it and then it says the date, but if you put your name and your logo on it that definitely would help with proving willfulness but it would be better to have the “C”.

Zim: In the last several years especially the social media, the thing that we're really concerned about is posting images to places like Facebook or Instagram; you know at one point they had written into their terms of use that they actually own the images. What's the situation with that?

Michael: That is a complicated question. I think that it’s still evolving. There's been some case law recently about someone using Twitter - publishing a photograph on Twitter, and then news agency, I believe, using the image from Twitter and then the photographer trying to sue that news agency for copyright infringement. And it depended on how the news agency used the photograph. If they used it consistent with the Twitter terms of service then  it would not have been infringement. And if they used it in a manner that's different than it would have been an infringement. So it's complicated. I think you can publish your photographs on Twitter but I expect that you may have some additional difficulties with using them, because you by doing that you are necessarily giving up some of your rights according to the terms of service on Twitter or Facebook. If you want to show your images on the web it's probably best to show them on your own website and post a link to that on the social media sites.

Zim: A little bit different from that what about cloud storage? Like if I'm storing my images; you know people are taking pictures on their phone and actually on cameras and moving it to their phone and they get shoved up to like the Apple Cloud. Since it's sitting on their servers on their cloud, am I at risk with them taking any type of ownership of my work or does it still come down to the terms of use again?

Michael: So it does come down to the terms of use but I as far as I know using a cloud service like the  Adobe one or the Apple one or Google does not affect your rights in the photographs. Google, Apple, Adobe are not trying to take ownership of the copyright of your photographs just by storing them in their location. Those are storage areas that are reserved exclusively for you and you really control them. It's more like they are lending you or you’re leasing out a file cabinet drawer  where you’re keeping your photographs and that file cabinet drawers is your property.

Zim: I think that's it. Are there any other bad assumptions that photographers are making about their copyright?

Michael: I really don't know what bad assumptions photographers make but.

Zim: Well I think one of the bad assumptions was that you know simply putting your watermark on your image is in effect the registration of copyright.

Michael: I think that there are some issues that photographers might want to look out for. There's a growing industry in the plaintiff's litigation bar where people represent photographers on a contingent basis against people that have infringed their copyrights. And they can do that by using special software to put in the photograph of photographers and search the web for other people that have used it and then find out if there's been a license given for that photograph. And if not a lot of times they file copyright infringement claims against that company and try and extract the appropriate amount of settlement for that. So if your images have been infringed I think it's important for you to contact an attorney to find out what your options are.

Zim: I think that sums it up. I'd like to talk again about what happens if or when that copyright is infringed and what measures we can take so can I reach out to you again maybe in two or three weeks?

Michael: Yeah that sounds great.

Zim: All right thanks for joining me Michael I'll talk to you again next time.

Michael: Nice talking to you Zim. Bye Bye

Links for Copyright Office:
Copyright Office Website
Group Registration for Published Photographs (GRPPH)
Copyright Office Fees



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